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2014 DIGILAW 156 (ORI)

Manoj Ranjan Nayak v. Purna Chandra Das

2014-03-05

B.K.PATEL

body2014
JUDGMENT B.K. Patel, J. 1. This revision is directed against the impugned order dated 4.1.2012 passed by the learned S.D.J.M., Bhubaneswar rejecting petitioner's application under Section 245(2) of the Cr.P.C. to discharge him of the accusation of commission of offences under Sections 120-B/427/506 of the Indian Penal Code (for short the 'I.P.C.') in I.C.C. No. 4641 of 2008 instituted by the opposite party complainant against the petitioner and another co-accused. The complainant is power of attorney holder and grand-father of one Pradipta Kumar Mohanty. It is alleged in the complaint petition that Pradipta Kumar Mohanty purchased the disputed land on the strength of registered sale deed dated 18.4.1989 and is in possession by constructing boundary wall around the same. On 16.11.2007 said Pradipta Kumar Mohanty executed a registered power of attorney in favour of the complainant. On the date of occurrence, i.e., on 2.11.2008 evening, the complainant came to know that some persons were preparing to demolish the boundary wall. He along with others went there and found the co-accused along with seven to eight labour class people and five to six persons wearing uniform like security guards demolishing boundary wall using Crowbar and Gainthi etc. and removing the laterite stones from the spot by tractor. On protest raised by the complainant, persons wearing uniform told that they were security guards of the petitioner and the petitioner had instructed them to demolish the boundary wall. Co-accused instructed the workers to finish the demolition work quickly and he also joined the workers in demolishing the wall. Co accused also threatened that if anybody obstructed them, they would kill him. It is alleged that the petitioner was monitoring the illegal acts of demolition of wall, removal of stones and intimidation over telephone which the complainant overheard from the co-accused. Out of fear, the complainant left the spot and lodged report at Khandagiri Police Station. As there was no action on the complainant's report, the complainant filed complaint petition alleging commission of offences under Sections 109, 427, 379, 506 and 431 read with 34 of the I.P.C. against the petitioner and the co-accused. After recording of the initial statement of the complainant and enquiry under Section 202 of the Cr.P.C., in course of which two witnesses were examined, cognizance of commission of offences under Sections 427, 506 and 120-B of the I.P.C. was taken. 2. After recording of the initial statement of the complainant and enquiry under Section 202 of the Cr.P.C., in course of which two witnesses were examined, cognizance of commission of offences under Sections 427, 506 and 120-B of the I.P.C. was taken. 2. Sri S.K. Padhi, learned Senior Advocate appearing for the petitioner submitted that admittedly there is no allegation against the petitioner to have committed any overt physical act towards commission of any offence. It is not alleged that the petitioner was present at the spot. The petitioner is sought to be implicated with the commission of offences under Section 427 and 506 of the I.P.C. with the aid of allegation under Section 120-B of the I.P.C. on the basis of vague allegation that the co-accused along with labourers and security guards have committed the offences under Section 427 and 506 of the I.P.C. on being instructed by the petitioner. It was vehemently argued that there is no material on record to indicate petitioner's complicity with the alleged occurrence. It was pointed out that while rejecting petitioner's application under Section 245(2) of the Cr.P.C., learned S.D.J.M., Bhubaneswar has referred simply to the statement of the co-accused to have been instructed by the petitioner to demolish the boundary wall. Even if such allegation is taken on its face value, statement of the co-accused cannot form the basis of framing of charge. It was argued that statement of the co-accused cannot be converted or translated into evidence in course of trial. It was further contended that materials on record do not indicate any motive on the part of the petitioner for committing the alleged offences. As to whether there exists sufficient ground for framing of charge against the accused a Court, though is not required to meticulously examine the materials collected in course of investigation or enquiry, is obliged to come to the conclusion that there exists grave suspicion against the co-accused to have committed the alleged offence. It was argued that in the present case materials on record prima facie do not raise any suspicion, not to speak of grave suspicion, against the petitioner. There is no material to indicate any agreement of mind for commission of any illegal act between the petitioner and the co-accused so as to presume commission of offence of conspiracy against the complainant. There is no material to indicate any agreement of mind for commission of any illegal act between the petitioner and the co-accused so as to presume commission of offence of conspiracy against the complainant. On the basis of documents produced before the Court it was submitted by the learned Senior Advocate appearing for the petitioner that the opposite party-complainant has instituted C.S. No. 495 of 2008 for title and possession over the disputed land in the court of learned Civil Judge (Senior Division), Bhubaneswar on 23.4.2008 long before institution of the complaint case. However, the complaint petition is altogether silent regarding institution of civil suit in which the petitioner has got himself impleaded on behalf of defendant therein which is an educational trust. It was further argued that complaint case has been filed by the opposite party to coerce the petitioner and to create evidence for the purpose of the suit by suppressing the fact of Pendency thereof. 3. Sri R.C. Mohanty, learned Advocate appearing for the opposite party, in reply, does not dispute institution of C.S. No. 495 of 2008 by the complainant-opposite party against the educational trust which the petitioner represents prior to filing of the complaint petition. However, it was argued that in the suit the complainant seeks to enforce his civil rights with regard to disputed land which he purchased in the year 1989 whereas the complaint petition has been filed seeking penal action for commission of offences by the accused persons. Therefore, non-reference of pendency of civil suit does not amount to suppression and is, therefore, not material. Sri Mohanty raised a preliminary objection to the maintainability of this revision on the ground that the petitioner had earlier challenged the order of taking of cognizance of the offences unsuccessfully. It was also contended that it is evident from the complaint petition, initial statement of the complainant and the statement of the two witnesses examined in course of enquiry under Section 202 of the Cr.P.C. that at the instance of the petitioner the co-accused along with the labourers and security personnel demolished the boundary wall and intimidated the complainant. There is no scope to hold that materials on record do not indicate prima facie case to constitute sufficient ground for proceeding against the petitioner. 4. There is no scope to hold that materials on record do not indicate prima facie case to constitute sufficient ground for proceeding against the petitioner. 4. Learned counsel appearing for both sides placed reliance on decisions elucidating scope and ambit of Section 482 of the Cr.P.C. conferring jurisdiction on the High Court to quash a criminal proceeding. In this context, it may be pointed out that principles indicated in such decisions with regard to the jurisdiction of the High Court to quash a criminal proceeding by invoking power under Section 482 of the Cr.P.C. are well settled. In the present case, the petitioner has not invoked the power of the Court under Section 482 of the Cr.P.C. On the contrary, the petitioner has assailed legality and propriety of order passed by the learned S.D.J.M., Bhubaneswar rejecting petitioner's application under Section 245(2) of the Cr.P.C. by invoking revisional jurisdiction of this Court. 5. Admittedly, it is not alleged that the petitioner was at the spot at the time of commission of alleged offences. It is alleged that co-accused along with labourers and security personnel demolished the boundary wall around the disputed land and intimidated the complainant as a result of conspiracy hatched between the petitioner and co-accused. It is well settled that a conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. Intention to do criminal conspiracy has its foundation in an agreement to commit an offence. In Pratapbhai Hamirbhai Solanki - vrs.- State of Gujarat and Anrs. : 2012 AIR SCW 5567, it has been observed by the Hon'ble Supreme Court as follows: 22. In Ram Narayan Popli v. Central Bureau of Investigation, while dealing with the conspiracy the majority opinion laid down that the elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by an effectual means, and (d) in the jurisdiction where the statute required an overt act. It has been further opined that the essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. No overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effect, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The two-Judge Bench proceeded to state that for an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. 6. It is pertinent to point out that in the present case the opposite party had filed the complaint seeking prosecution of the petitioner for commission of offences under Section 109, 427, 379, 506 and 431 read with 34 of the I.P.C. In the complaint petition, petitioner did not allege that the petitioner had entered into any conspiracy or that the petitioner and co-accused had agreed to accomplish any object by doing an illegal act, or an act which is not illegal by illegal means. In fact, materials on record are altogether silent regarding the object which they wanted to be accomplished by doing the alleged offences under Sections 427 and 506 of the I.P.C. There is no reference in the complaint petition to the fact of pendency of civil suit between the complainant and the petitioner relating to the disputed land. In fact, materials on record are altogether silent regarding the object which they wanted to be accomplished by doing the alleged offences under Sections 427 and 506 of the I.P.C. There is no reference in the complaint petition to the fact of pendency of civil suit between the complainant and the petitioner relating to the disputed land. In course of hearing, learned Senior Advocate appearing for the petitioner cited the decision of Indian Oil Corporation vs. NEPC India Ltd. and others: (2006) 6 SCC 736 wherein Hon'ble Supreme Court has taken note of and deprecated the current practice of misuse of criminal process to put undue pressure in civil disputes. 7. Be that as it may, principles with regard to factors required to be taken into consideration for the purpose of framing of charge by court against an accused are well settled. Preliminary objection raised by the learned counsel for the opposite party with regard to maintainability of this revision on the ground that the petitioner had unsuccessfully assailed the order of taking of cognizance of offences is prima facie untenable. Order of taking of cognizance of commission of offence is different from order of framing of charge against an accused for commission of offence. A court takes cognizance of commission of offence whereas charge is framed against an accused for commission of offence. At the stage of taking of cognizance, court is required to find out as to whether there is material to prima facie indicate commission of offence. On the other hand, while framing charge, court is to find out as to whether materials on record to indicate grave or strong suspicion against the accused person to have committed the alleged offence. 8. On the other hand, while framing charge, court is to find out as to whether materials on record to indicate grave or strong suspicion against the accused person to have committed the alleged offence. 8. Though there is difference in the language employed in Section 227 of the Cr.P.C. which contemplates discharge of the accused by the Court of Session in cases triable by it, Section 239 of the Cr.P.C. in cases instituted upon the police report and Section 245 of the Cr.P.C. in case instituted otherwise on a police report, as has been pointed out by Hon'ble Supreme Court in State of Tamil Nadu -v.- N. Suresh Ranjan and others: 2014 AIR SCW 942, placing reliance on R.S. Nayak -v.- A.R. Antulay: AIR 1986 SC 2045 , notwithstanding this difference and, which ever provision may be applicable, Court is required at the stage of framing of charge to see that there is prima facie case for proceeding against the accused. Factors which are required to be considered by a court to frame charge or to discharge an accused, and the scope of jurisdiction of the court to determine whether there is sufficient ground for proceeding against an accused, have been elaborately pointed out by the Hon'ble Supreme Court in State of Karnataka - vrs. - L. Muniswamy State of Kerala and Another: AIR 1977 SC 1489 at paragraph 10 as follows: On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning & Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly except the decision of the prosecution that the accused be asked to face a trial. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly except the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal's case Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent S. 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of S. 203 of the old Code that the Magistrate was not bound to except the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. 9. In P. Vijayan - vrs.- State of Kerala and Another: AIR 2010 SC 663 , it has been pointed out by the Hon'ble Supreme Court at paragraph 10 as follows: If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 10. It has further been observed by the Hon'ble Supreme Court at paragraph 14 as follows: Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge. 11. In Shri Satish Mehra - vrs. - Delhi Administration and another: JT 1996 (7) S.C. 6, it has been observed: 11. In Union of India v. Profullakumar - 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, their Lordships pointed out that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. "by and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to some suspicion but not grave suspicion, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected even warranted at this stage. 12. At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected even warranted at this stage. 12. An incidental question was emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing submissions? Should it be confine hearing oral arguments alone? 13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge. 14. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. 14. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code. 15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the sessions courts in India are under heavy pressure of work load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or nip the proceedings at the stage of Section 227 of the Code itself. 12. Keeping in view the above referred settled principles, on a close scrutiny of materials on record it is found that in the complaint petition the sole allegation against the petitioner is that some of the persons engaged in demolishing the wall told that they have been asked to demolish the boundary wall by the petitioner and that the complainant overheard from the co-accused that the petitioner was monitoring the unlawful acts over telephone. In the initial statement complainant stated that it was the co-accused who gave out that he has been asked by the petitioner to break the wall. However, one of the witnesses Damodar Sahoo examined by the complainant in course of enquiry under Section 202 of the Cr.P.C. stated that it was the co-accused who claimed the disputed land and stones of the boundary wall to be his own. However, one of the witnesses Damodar Sahoo examined by the complainant in course of enquiry under Section 202 of the Cr.P.C. stated that it was the co-accused who claimed the disputed land and stones of the boundary wall to be his own. Though the complainant himself does not allege presence of petitioner at the spot, this witness stated that both the accused persons threatened the complainant holding crowbar and other articles. In the impugned order itself, learned S.D.J.M. has come to the finding that the materials available on record are sufficient for framing of charge on the basis of one sentence only which reads: In the present case from the complaint, it appears that the co-accused persons had categorically stated at the spot that they have been engaged by the present accused Manoranjan Nayak to demolish the boundary wall of the plot of the complainant and they had threatened to kill the informant as per the instruction of the present accused. 13. Thus, save and except vague statement that co-accused gave out that they were engaged in demolishing the boundary wall on being instructed by the petitioner, there is no material to implicate the petitioner with the alleged occurrence. It is well settled that statement of co-accused is not admissible in evidence against another co-accused. At the time of framing of charge, court has to consider the material which has been collected during investigation or enquiry in order to satisfy as to whether there exists sufficient ground to proceed against an accused. It has been pointed out by the Hon'ble Supreme Court in Suresh Budharmal Kalani alias Pappu Kalani vs. State of Maharashtra: (1998) 7 SCC 337 that at the stage of framing of charge, the court is required to confine its attention to only those materials collected during investigation or enquiry which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. In the present case, there being no other materials save and except vague allegation to the effect that co-accused made a statement that he had been instructed by the petitioner to commit the unlawful acts, there was no basis for the learned S.D.J.M. to conclude that there is sufficient ground to proceed against the petitioner by framing of charge. In the present case, there being no other materials save and except vague allegation to the effect that co-accused made a statement that he had been instructed by the petitioner to commit the unlawful acts, there was no basis for the learned S.D.J.M. to conclude that there is sufficient ground to proceed against the petitioner by framing of charge. There exist no material on record which can be converted into evidence in course of trial to raise grave suspicion against the petitioner. The impugned order under Section 245(2) of the Cr.P.C. has been passed without application of mind and without keeping in view above referred settled principles of law. Therefore, the impugned order is not sustainable and is liable to be set aside. In view of the above, the CRLREV is allowed. The impugned order is set aside. Petitioner is discharged of the accusation of the offences made against him in I.C.C. No. 4641 of 2008 of the court of S.D.J.M., Bhubaneswar. Petition allowed.